A gradual and uncertain process, or How we got into this mess.

Assisted suicide and euthanasia are in the headlines again. The conviction of Frances Inglis, and the acquittal of Kay Gilderdale, set the scene for this year’s Dimbleby Lecture, in which Sir Terry Pratchett called for “euthanasia tribunals”, to which people could apply when they wanted to end their lives.

It’s unlikely that any of the current crop of politicians (or any of the May 2010 intake) will be able to muster the courage and leadership needed for such reform. There is no sign of a considered and coherent approach to the question of assisted suicide and euthanasia, and it has been needed for a long time.

This post will be split into a few parts, as there’s a lot to cover, and what follows will involve much of discussion of court cases and prosecution policy. This reflects the fact that, despite polls regularly showing that over 80% of the UK population supports assisted suicide for the terminally ill, Parliament has refused to act.

In 1993, delivering a judgement in the case of Tony Bland, Lord Browne-Wilkinson said

If Parliament fails to act, then judge-made law will of necessity through a gradual and uncertain process provide a legal answer to each new question as it arises. But in my judgment that is not the best way to proceed.

Tony Bland finally died, the final victim of the 1989 Hillsborough Disaster, after four years in a coma, kept alive only by intravenous feeding, while his parents and doctors fought a four year legal battle to allow him to die. It has been 17 years since his death, during Parliament has not acted, and it has fallen to the courts to feel their way along that gradual and uncertain process.

In many ways, Tony Bland’s case marked the first time the Courts expressly approved a positive act to end the life of a patient. Bland’s situation differed markedly from what had gone before. While it was broadly accepted that a failure to provide treatment did not constitute killing, Tony Bland’s doctor sought permission to withdraw life saving treatment. Only one outcome could result: the death of the patient.

Denied traditional recourse to the Aquinian ethical cowardice of the double effect principle, the Court of Appeal and the House of Lords instead tied themselves in logical knots to avoid holding that the doctors could take positive steps to end Bland’s life, but still allow them to do so. In his judgement, Lord Keith noted that

the law draws a crucial distinction between cases in which a doctor decides not to provide, or to continue to provide, for his patient treatment or care which could or might prolong his life, and those in which he decides, for example by administering a lethal drug, actively to bring his patient’s life to an end.

but the treatment to which he referred was food and water.

In short, the House of Lords held that starving a patient to death was legal (provided that it was considered by the doctor to be in the patient’s best interests), but that administering a drug which would end the patient’s life immediately, and painlessly, was not.

For me, one of the problems with the Bland case is that the decision had invoked a principle drawn from the law of negligence – the rule in Bolam v Friern Hospital Management Committee. This 1957 decision had established that a doctor would not be negligent if he treated a patient in a way that a responsible body of medical opinion considered appropriate. Around the time that Tony Bland’s case was working its way up to the House of Lords, the Bolam test being applied to broader questions of medical ethics.

Two years before Bland, the House of Lords had considered the case of Fiona Kinloch, a 36 year old woman with a mental age of five. Her doctors, apparently with the consent of her mother, wished to sterilise her, so as to avoid a pregnancy with which she was incapable of dealing. As there was no possibility of the patient being capable of consenting, a declaration was sought from the court to the effect that the operation might be performed.

Although the Court of Appeal had considered the Bolam test to be insufficent, the House of Lords largely disagreed, adopting it as the measure to be used to determine whether a particular course of action (e.g. treatment, or the withholding of treatment) was in the best interests of a patient, and rejecting the Court of Appeal’s view that a more stringent test was needed. Lord Brandon, giving the leading speech, said

If doctors were to be required, in deciding whether an operation or other treatment was in the best interests of adults incompetent to give consent, to apply some test more stringent than the Bolam test, the result would be that that such adults would, in some circumstances at least, be deprived of the benefit of medical treatment which adults competent to give consent would enjoy. In my opinion it would be wrong for the law, in its concern to protect such adults, to produce such a result.

Like Fiona Kinloch, Tony Bland was incapable of consenting to medical treatment. With no prospect of consent from the patient, his case also resolved to the question of his best interests, and again the Bolam test came into play. There was some brief discussion of an alternative test. Lord Goff considered the approach of the American courts, who looked for some indication of the likely wishes of the patient, but rejected this, saying:

…I do not consider that any such test forms part of English law in relation to incompetent adults, on whose behalf nobody has power to give consent to medical treatment. Certainly, in [the Fiona Kinloch case, the House of Lords] adopted a straightforward test based on the best interests of the patient; and I myself do not see why the same test should not be applied in the case of PVS patients, where the question is whether life-prolonging treatment should be withheld.

In rejecting the American approach (the substituted judgement test) and carrying on the use of the Bolam (“best interest”) test, the House of Lords emphasised a paternalistic approach, in which the views of doctors were to take precedence.

The 2003 case of Ms. B, left quadriplegic and dependent on a ventilator, presented the starkest illustration yet of the practical fudge involved in the Bland case. It also showed the limits (and dangers) of the paternalistic approach which underpinned the decision in Bland.

Ms. B wished to have her ventilator turned off, a course which would inevitably lead to a quick death. The hospital treating her refused to comply, and Court held that the refusal stemmed in part from the attitude of the doctors treating her (that turning off the ventilator would be killing the patient, and hence unacceptalbe) and partly from a false belief that Ms. B was not mentally capable of making this decision until she had first tried some form of rehabilitation. Finding for Ms. B, Dame Butler-Sloss said

One must allow for those as severely disabled as Ms B, for some of whom life in that condition may be worse than death. It is a question of values and…we have to try inadequately to put ourselves into the position of the gravely disabled person and respect the subjective character of experience. Unless the gravity of the illness has affected the patient’s capacity, a seriously disabled patient has the same rights as the fit person to respect for personal autonomy. There is a serious danger, exemplified in this case, of a benevolent paternalism which does not embrace recognition of the personal autonomy of the severely disabled patient.

Absurdly, it is clear from the judgement that the hospital was prepared to countenance a procedure known as “one-way weaning”. This would have slowly reduced the support from the ventilator, but without pain relief. Dame Butler-Sloss was in no doubt about the reality of this proposal:

…the one-way weaning process was inevitably going to fail and she would die over three weeks and not in a few hours. I have to say, with some sadness, that the one-way weaning process appears to have been designed to help the treating clinicians and the other carers and not in any way designed to help Ms B. If the one-way weaning process were to be carried out as suggested by the doctors there would be a risk that she would die in discomfort and possibly in pain, even though that is not what they intended. It was obviously, to anyone looking at it from outside the hospital, an unrealistic and unhelpful programme.

Like Lord Keith, ten years before, who had been prepared to see a patient starved to death, but not killed instantly, the doctors treating Ms. B were prepared to see her slowly suffocate and suffer discomfort over an extended period, but not quickly succumb when the ventilator was turned off.

By 2003, this was the result of Lord Browne-Wilkinson’s “gradual and uncertain process”. It would be wrong to treat Ms. B as in any way ‘lucky’ in her injuries, but as we’ll see, the 2008 case of Daniel James showed one distinct advantage which she enjoyed: her life was being preserved by artificial means, which she had the option to discontinue. Daniel James, tetraplegic, incontinent, reliant on 24 hour care, but crucially not reliant on external ventilation, had no such option.

More to come…